SSL Capital claimform - Cash Store Payday loan **SETTLED**

[AndyOrch]

Many thanks Tonster...leave it with me and I will draft a proposed defence for your perusal before your submission date 02.12.If you can think of anything else in the meantime just post it to your thread.

 

Regards

Andy

[Tonster]

Hi Andy

 

Thanks for that

 

Cheers

[AndyOrch]

Particulars of Claim

 

1. The claimant's claim is for the sum of £13**.** inclusive of interest and charges being monies owed by the Defendant to Claimant pursuant to a fixed-sum loan agreement dated ** January 2012 taken out by the Defendant from Cash Store Limited.

2. By way of a Deed of Assignment entered into between Cash Store Ltd and the Claimant dated ** April 2014 the benefit of the Unsecured Loan and therefore the right to pursue the Defendant for the sums outstanding pursuant to the Unsecured Loan was assigned to the Claimant in accordance with section 136 of the Law Property Act 1925. A copy of the Assignment (in so far as it is relevant to this claim and not subject to confidentialityicon) will be provided in due course to the Court.

3. Notice of the Assignment was given to the Defendant on ** May 2014

4. The Claimant has tried to mediate with the Defendant to resolve this matter with no avail.

5. Despite numerous requests for payment, the sum of £13**.** inclusive of interest and charges to date remains due and outstanding.

 

 

AND THE CLAIMANT CLAIMS

1. The sum of £13**.** pursuant to the paragraphs above

2. Further interest upon the outstanding sum at the rate of 8% per annum pursuant to section 69 of the county courts act 1984 from the date hereof at a daily rate of £0.30 until judgment or sooner payment.

3. Costs and court fees

 

Proposed defence

 

Paragraph 1 is admitted in as far as I did enter into a fixed sum agreement for a payday loan with Cash Store Ltd.The loan amount requested was £805 plus admin fees etc and one months interest the total credit was £1069.79.

 

Paragraph 2 is noted but is stated that I did offer to make a payment arrangement with the original creditor who declined and refused to enter into any negotiation

when I informed them that I was having financial difficulties in making the repayments.

 

Paragraph 3 is admitted I did receive a Notice of Assignment from the claimant.

 

Paragraph 4 & 5 is (you will need to complete this as Im not aware if they did approach for payment or what you did about it)

 

On receipt of this claim I requested by way of a section 77 request a copy of the true original agreement.The claimant response was to provide a reconstituted version as the original had been subject to water damage.They refer to case law Carey v HSBC Bank Plc. which confirms that the term of a 'true copy' can mean a reconstituted loan agreement.

 

However the address of the creditor on the reconstituted version is different to that of the original creditor and also that cancellation rights apply. The original executed agreement referred to none cancellation of the agreement pursuant to CCA1974 the Time Share Act 1992 and also the Financial Services Distance Marketing Regulations 2004.

 

In Carey V HSBC the Judge Waksman stated that any reconstituted version must contain the name and address of the creditor and cancellation clause applicable to the executed agreement.

 

It is therefore considered that this is not a true copy of the executed agreement as it and the original are deficient of the prescribed terms.

The Agreement cannot be enforced against the Defendant without an order of the court by the reason of the fact that it was improperly executed as set out above and by reason of Section 65(1) and 77 (1) of the Act.

 

Nor the Claimant or the original creditor have ever served a Default Notice.For a creditor to enforce a credit agreement against the debtor, he must serve the latter with a default notice, this notice must be served in accordance with section 87 of the Consumer Credit Act 1974 (CCA).

 

Where a breach of a prescribed term under regulation 6 and schedule 6 to the Consumer Credit (Agreements) Regulations 1983 is found, the agreement as a whole will be irredeemably unenforceable.

 

The fact that neither have served a Notice of Sums in Arrears pursuant to section 86D CCA2006 he is not entitled to enforce the agreement.

 

By reason of the facts and matters set out above, it is denied that the Claimant is entitled to the relief claimed or any relief.

 

 

One defence in response ...edit and add accordingly.

 

Regards

 

Andy

[Tonster]

Hi Andy

 

Thanks for doing this, really appreciate your help. I will add in some details for points 4 and 5. Regarding the comments on the DN, can you take a look at entry 20 where I put a copy of the 'DN' that SLL Capital sent (nothing from the OC), what do you think I should mention in this regard?

 

Cheers

 

Tonster

[AndyOrch]

They cant issue a DN only the OC and its dated 2 years after the breach...stick to the defence

[Tonster]

Okey dokey, will get this off tomorrow first thing, just wanted to double check.

 

 

Cheers

[AndyOrch]

Get it off...? Are you not submitting it through MCOL..I thought your deadline was today

[Tonster]

No, MCOL issued a password that couldn't be used (nor changed) they told me so had to post it recorded delivery, did that with the AoS and called to confirm they had received it.

 

Deadline is Friday (hence giving today as the deadline to get my defence sorted)

 

 

Cheers

[AndyOrch]

You can use MCOL email dedicated for defendants...far more secure.

 

[email protected].

 

Attach as a PDF add the headers Claimant V Defendant claim number to the defence and subject line on email.

 

Andy

[Tonster]

Hi Andy

 

Cheers, that's noted for any other correspondence, already sent defence recorded delivery today but will follow up to make sure they got it

 

Tonster

[AndyOrch]

[Tonster]

Confirmation from Northampton they have received my defence

[Tonster]

Hi Andy

 

the claimant has now sent a letter to the court asking them to proceed and 'responding to my defence' in a letter. Anyway they have at the end proposed a settlement offer which I am happy to accept.

 

Just over £500 vs claim of over £1400. I'm happy with this as the whole dispute was around the ridiculous charges they and the OC had added.

 

I just want to make sure I don't get caught out now so to ensure that correct procedure is followed how should I respond now? They have proposed repayment of the settlement figure over 8 months which is fine by me.

 

Do I reply to them directly accepting their offer and copy in the court?

 

How do I ensure the claim is now discontinued?

 

Thanks for any advice Andy

 

Tonster

[AndyOrch]

Hi Tonster

 

This offer of settlement been made by way of a Consent/Tomlin Order?

[Tonster]

Hi Andy

 

No it's at the bottom of the letter they sent to the court (and sent me a copy) in reply to my defence.

 

It's a strange letter to be honest, I mean I'm no expert in court protocol but they have sent a letter to the court in reply to my defence answering each paragraph and adding 'exhibits' which are a few e-mails I had sent them previously, kind of a witness statement/settlement offer/general letter to the court all in one.

 

They've headed it 'statement of the claimant'.

 

They detail the offer and payment schedule and say the offer is made in good faith and is a fair resolution and hope it is received by the defendant as intended.

Tonster

[AndyOrch]

Ring them up and clarify the position.....if they wish to settle you may give it consideration if presented in a Consent/ Tomlin form.

[Tonster]

Hi Andy

 

 

On reading this again it is a witness statement that they have sent to the court, the offer of settlement comes at the end of the witness statement. I haven't had anything from the court at all yet (apart from receipt of my defence).

It is their 'legal manager' who has sent this in (not solicitors) but I will see if I can get hold of them or would I be better to put it in writing?

How does the tomlin order work? Does that mean as long as it's paid there is no CCJ similar to mediation arrangement?

 

 

I guess I should receive an AQ next from the court?

 

 

Cheers

 

 

Tonster

[AndyOrch]

Yes DQs next.....just ring the claimants sols up and speak to the person handling the claim......in view of the response to the defence you would like to suggest that you may be able to agree a settlement but would like to do this by way of a Tomlin Order....search Tomlin Order for full explanation but yes it would avoid a CCJ.

[Tonster]

Ok, will do. The claimant seems to be handling the claim, not a solicitor (Legal Manager of SLL Capital) so I will try and speak to him directly.

[AndyOrch]

Yes and if no joy try emailing them

[Tonster]

Will do

[Tonster]

Hi Andy

 

 

No joy getting through on the phone to him, have sent e-mail stating I maybe willing to settle as per his proposal in full and final settlement but would like him to draft a tomlin order for my consideration.

 

 

In the meantime is it worth me checking with the court on the status as I've had nothing from them at all?

 

 

Tonster

[AndyOrch]

Not really you will receive Notice if they wish to file DQs

[Tonster]

Okey dokey, I'll sit tight to wait to hear from the court re next steps and the claimant in response to the Tomlin Order request

[Tonster]

Hi Andy

 

 

I've had a reply from the claimant which I'd appreciate your thoughts on.

'

Thank you for your email.

 

We are very glad to hear that you have agreed to our offer put to you to repay £**.** for 8 consecutive months. We must firstly make it clear that if one month’s payment is missed this offer will be withdrawn.

 

Secondly you will have to ask the courts for a Tomlin Order as we do not feel this is the correct path to go down due to the threats you have made before regarding repaying your account. There is also a court cost to apply for a Tomlin order which you will have to repay.

 

Please confirm if a reply has been sent back to the courts regarding your intentions of repayment?

I'm a little confused by this and not sure what to do next, should I just wait to receive DQ's and deal with this at mediation?

Any guidance appreciated.